Mum wants to Hyphenate Childrens’ Surname & What Orders to make when Mum more focused on herself than Child Needs

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Mum wants to revert to her Birth Name and hyphenate the Childrens’ Surnames.

Consideration of what Orders to make when Mother reluctant to let 9yr old & 7 yr old spend large blocks of time with father.

Mother more focused on her own wishes than what is best for the children.  Father repartnered and Mother seeking high involvement.

Catchwords:
FAMILY LAW – Parenting – where the mother seeks to return to the flexible and co-operative parenting arrangement the parties had before the father re-partnered – where that is not possible – where the mother wants to hyphenate the children’s surnames.
Legislation:
Family Law Act 1975ss.60B60B(1), 60B(2), 60CA60CC(2), 60CC (3),60CC(2A)
Cases cited:
Mazorski v Albright(2008) 37 FLR 518
Tait & Densmore[2007] FamCA 1383
Godfrey & Sanders[2007] FamCA 102
Applicant:
MS MCCONNELL
Respondent:
MR MCCONNELL
File Number:
DGC 2396 of 2015
Judgment of:
Judge Small
Hearing date:
23 November 2016
Date of Last Submission:
23 November 2016
Delivered at:
Morwell
Delivered on:
22 June 2017

REPRESENTATION

Counsel for the Applicant:
Mr Whitchurch
Solicitors for the Applicant:
Christine J Shanahan & Associates
Counsel for the Respondent:
Mr Gates
Solicitors for the Respondent:
Julie Taylor

ORDERS

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(1) All previous parenting orders in relation to the children X born (omitted) 2007 and Y born (omitted) 2009 (“the children”) are hereby discharged.
(2) The parents shall have equal shared parental responsibility for the children.
(3) The children shall live with the mother.
(4) The father shall spend time and communicate with the children as follows:

    (a) on each alternate weekend during school terms from the conclusion of school on Friday to the commencement of school on Monday;
    (b) during school terms from the conclusion of school each Wednesday to the commencement of school each Thursday;
    (c) for five nights in the June – July school holidays in 2017 by agreement between the parties and failing agreement from noon on the first Sunday of the holidays until noon on the first Friday;
    (d) thereafter for half of all school term holidays by agreement between the parties and failing agreement for the first half from the conclusion of school on Friday to 6:00 p.m. on the first Saturday in 2017 and in each alternate year thereafter, and for the second half from 6:00 p.m. on the second Saturday to the commencement of the next school term in 2018 and in each alternate year thereafter;
    (e) for two blocks in the long summer holidays in 2017 – 2018 by agreement between the parties and failing agreement from 6:00 p.m. on 16 December to 11:00 a.m. on Christmas Day 2017, and from 6:00 p.m. on 12 January to 6:00 p.m. on 22 January 2018;
    (f) for half of the long summer holidays each year commencing in the 2018 – 2019 holidays by agreement between the parties and failing agreement, and subject to the provisions of paragraph (g) hereof, for the second half in 2018 – 2019 and in each alternate year thereafter and the first half in 2019 – 2020 and in each alternate year thereafter;
    (g) from 4:00 p.m. on Christmas Eve to 11:00 a.m. on Christmas Day in 2019 and in each alternate year thereafter, and from 11:00 a.m. on Christmas Day to 6:00 p.m. on Boxing Day in 2018 and in each alternate year thereafter;
    (h) for the children’s birthdays:

(i) from the conclusion of school until 8:00 p.m. on the relevant child’s birthday in 2017 and in each alternate year thereafter and from the conclusion of school until 8:00 p.m. on the day before the relevant child’s birthday in 2018 and in each alternate year thereafter should the birthday fall on a school day; and
(ii) for five hours by agreement between the parties and failing agreement from 10:00 a.m. till 3:00 p.m. in 2017 and in each alternate year thereafter and from 3:00 p.m. to 8:00 p.m. in 2018 and in each alternate year thereafter should it fall on a non-school day;

(i) On the father’s birthday each year from the conclusion of school until 8:00 p.m. should it fall on a school day and for five hours by agreement between the parties and failing agreement from 3:00 p.m. to 8:00 p.m. should it fall on a non-school day;
(j) for half of the Easter long weekend each year by agreement between the parties and failing agreement from the conclusion of school on Maundy Thursday (or 3:30 p.m. if not a school day) to 6:00 p.m. on Easter Saturday in 2018 and in each alternate year thereafter and from 6:00 p.m. on Easter Saturday to the commencement of school (or 8:30 a.m. if not a school day) on Easter Tuesday in 2019 and in each alternate year thereafter;
(k) from 6:00 p.m. on the evening before Father’s Day to 2:00 p.m. on Father’s Day each year ;
(l) by telephone at any reasonable time while the children are in their mother’s care but on only one occasion per day save in the case of a family emergency;
(m) at other times as may be agreed between the parties in writing.

(5) The children’s time with the father pursuant to paragraph 4(a) hereof regime shall suspend during school holidays and recommence at the commencement of the next school term as though the holidays had not intervened.
(6) The father’s time with the children pursuant to paragraph (4) hereof shall suspend if necessary so that the mother shall spend time and communicate with the children:

    (a) from 11:00 a.m. on Christmas Day to 6:00 p.m. on Boxing Day in 2017 and in each alternate year thereafter and from 4:00 p.m. on Christmas Eve to 11:00 a.m. on Christmas Day in 2018 and in each alternate year thereafter;
    (b) for half of the Easter long weekend each year by agreement between the parties and failing agreement from the conclusion of school on Maundy Thursday (or 3:30 p.m. if not a school day) to 6:00 p.m. on Easter Saturday in 2019 and in each alternate year thereafter and from 6:00 p.m. on Easter Saturday to the commencement of school (or 8:30 a.m. if not a school day) on Easter Tuesday in 2018 and in each alternate year thereafter;
    (c) from the conclusion of school until 8:00p.m. on the mother’s birthday should it fall on a school day, and for five hours by agreement between the parties and failing agreement from 3:00 p.m. to 8:00 p.m. should it fall on a non-school day;
    • (d) for the children’s birthdays:
      • (i) from the conclusion of school until 8:00 p.m. on the relevant child’s birthday in 2018 and in each alternate year thereafter and from the conclusion of school until 8:00 p.m. on the day before the relevant child’s birthday in 2017 and in each alternate year thereafter should the birthday fall on a school day; and
      • (ii) for five hours by agreement between the parties and failing agreement from 3:00 p.m. to 8:00 p.m. in 2017 and in each alternate year thereafter and from 10:00 a.m. till 3:00 p.m. in 2018 and in each alternate year thereafter should it fall on a non-school day;

(e) from 6:00 p.m. on the day before Mothers’ Day to 2:00 p.m. on Mothers’ Day each year;

    (f) by telephone at any reasonable time but on only one occasion per day save in the case of a family emergency while the children are in their father’s care; and
    (g) at such other times as may be agreed between the parties in writing.

(7) Where the father’s time with the children is said to commence or conclude before or after school then the father shall be responsible for ensuring that the children are collected from and delivered to their school, and at all other times changeover shall take place in the car park of the Woolworths store in (omitted) unless otherwise agreed between the parties in writing.
(8) Where any matter is stated in these orders as being subject to the parties’ agreement in writing, that agreement must be explicit and neither party shall take silence on the other party’s part as constituting such agreement.
(9) Each party shall notify the other of any change of address (including email address) and/or contact telephone number within 24 hours of such change.
(10) The parties be and are hereby restrained by injunction from:

    (a) abusing, insulting, belittling, rebuking or otherwise denigrating the other or any member of the other’s family or household in the children’s presence or hearing, and from allowing them to remain in the presence or hearing of any third party who is engaging in such conduct;
    (b) discussing these proceedings or any parenting disputes or issues in the children’s presence or hearing, and from allowing them to remain in the presence or hearing of any third party who is engaging in such conduct;
    (c) passing messages to the other parent through the children or either of them;
    (d) attending at the other parent’s home for any purpose other than agreed changeovers without the express invitation of the other parent first given in writing;
    (e) allowing the children or either of them to access, read or have read to them any portion of the Court’s Reasons for Judgment in this matter; and
    (f) using any form of corporal punishment in disciplining the children or either of them;
    (g) having a blood alcohol level of .05 or higher while the children are in their respective care.

(11) Each party shall be at liberty to enrol the children or either of them, at that parent’s expense, in any extracurricular activity which occurs during their time with the children, but neither shall enrol the children or either of them in any extracurricular activity occurring during the other parent’s time with the children without the written consent of the other parent first obtained.
(12) Each party shall notify the other as soon as practicable in the event of the children or either of them suffering any serious illness or injury while they are in their respective care and each shall authorise any medical or allied practitioner who treats the children or either of them to communicate and consult with the other parent.
(13) Each party shall advise the other of any medication prescribed for the children or either of them, including the dosage prescribed, and shall ensure that such medication travels with the children.
(14) The mother shall authorise any school or the organisers of any extracurricular activities in which the children are enrolled, to provide to the husband at his expense, if any, all information, notices, photographs, reports and like materials and he shall be named as a contact person in the records of such school or organisation in the event of any emergency involving the children or either of them.
(15) The parties shall be at liberty to provide a copy of these orders (but not the Court’s Reasons for Judgment) to the children’s school.
(16) Both parties, their respective partners if any, and the children’s grandparents shall be at liberty to attend any school functions, extra-curricular activities or events to which parents and/or grandparents are usually invited.
(17) The mother shall be at liberty to change the children’s legal surname to (omitted)-McConnell notwithstanding that the consent of the father has not been obtained, and the children shall thereafter be known as X and Y, and the parties are hereby restrained by injunction from registering the children’s names as other than (omitted)-McConnell in any legal document.

IT IS NOTED that publication of this judgment under the pseudonym McConnell & McConnell is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MORWELL

DGC 2396 of 2015

MS MCCONNELL

Applicant

And

MR MCCONNELL

Respondent

REASONS FOR JUDGMENT

Introduction

  1. These are parenting proceedings between Ms McConnell (“Ms McConnell” or “the mother”) and Mr McConnell (“Mr McConnell” or “the father”) about their children X born (omitted) 2007 (“X”) and Y born (omitted) 2009 (“Y”) (collectively “the children”).
  2. Both parents seek an order that they share parental responsibility for the children, although it would seem that they have slightly different ideas about what that might mean for them.
  3. There is no dispute that the children will continue to live with their mother, as they have done all their lives.
  4. The dispute in this case surrounds the issue of what specific time they will spend with their father and whether the very detailed parenting Orders the mother is seeking are appropriate.
  5. Ms McConnell would also like to add her family name of (omitted) to the children’s surnames so that she can change her name back to its original form.
  6. So the issues in this matter can be set out as follows:
    1. What kind of spend time regime between the children and their father is appropriate and what kind of ancillary orders should be made in relation to that time?
    2. Should there be an injunction preventing the mother from changing the children’s surnames to incorporate the name of her family of origin?

Background

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  1. Mr McConnell was born on (omitted) 1980 and is now 37 years old. He is currently employed full-time as a (occupation omitted).
  2. Ms McConnell was born on (omitted) 1981 and is currently 35 years old. She is currently employed part-time as a (occupation omitted). She has not repartnered.
  3. The parties commenced living together on the day of their wedding on (omitted) 2003 and separated in October 2009 when their younger daughter Y was six months old.
  4. The parties were divorced on 3 August 2014.
  5. They were able to come to agreement about their property settlement, with final property orders being made by consent on 18 February 2016.
  6. Mr McConnell has been in a relationship with Ms D (“Ms D”) since 2013 and they have been living together since April 2016. Ms D has no children of her own and there are no children of that relationship.
  7. The parties had a flexible but routine parenting relationship for about six years after their separation, with each visiting the other’s home regularly, and attending family gatherings on both sides together with the children.
  8. However, when Ms D moved to (omitted) in 2015, that arrangement changed.
  9. Mr McConnell seeks a new arrangement commensurate with his new life.
  10. Ms McConnell wants the old flexible and co-operative arrangement to remain in place.

Procedural History

  1. These proceedings were brought by Ms McConnell filing her Initiating Application on 3 August 2015. Mr McConnell filed his responding material in October of the same year, and the parties first appeared before Judge Phipps on 12 October 2015 at the Dandenong Registry of the Court.
  2. On that date, Judge Phipps was able to make interim parenting and property Orders by consent. Judge Phipps also ordered a family report, a conciliation conference and adjourned the matter to the Morwell circuit sittings of the Court for Final Hearing in February 2016.
  3. The family report of Ms J dated 8 February 2016 was released to the parties on 9 February 2016.
  4. The parties attended a conciliation conference at Morwell on 18 February 2016 and were able to finalise their property matters.
  5. On 29 February 2016, the parties appeared before me for the first time and the matter was adjourned for Final Hearing to the June sittings.
  6. On 20 June 2016, the parties were able to hand up interim consent minutes regarding the care of the children, and I adjourned the matter to a further Final Hearing in the circuit beginning on 29 August 2016.
  7. On 1 September 2016 the parties returned before me but I was unable to hear the matter on that day on a final basis. The parties were able to sign further interim consent minutes and I adjourned the matter with priority to the November circuit.
  8. The parties came before me on 23 November 2016 when I heard the matter on a final basis.
  9. The only witnesses were the parties, both of whom underwent cross-examination by the other’s counsel, and the entire matter lasted about half a day.
  10. At the completion of the trial, I handed down interim Orders varying the previous Orders and otherwise reserved my Judgment.

Issues and Evidence

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  1. What kind of spend time regime between the children and their father is appropriate?

The mother’s evidence

  1. The mother’s evidence is found in her three affidavits sworn 31 July 2015 and filed 3 August 2015, sworn 17 December 2015 and filed 18 December 2015 and sworn 27 August and filed 29 August 2016, all of which I have read and considered, and in her oral evidence given at trial.
  2. The mother says that after separation, she and the father determined that they would ensure that the children were as little impacted as possible by the fact that their parents were no longer living together.
  3. It is her evidence that for some six years after separation the parents would visit each other’s homes to spend time with the children while they were in the other’s care, that they attended family celebrations on both sides together with the children, and that her relationship with the father was friendly, co-operative and flexible.
  4. Her affidavit evidence paints a picture of an almost idyllic post separation situation, where the parents were friends, and there was no conflict about the time the children were to spend with their father.
  5. Ms McConnell wishes to return to that co-operative and flexible arrangement, and while at trial she said she understood that was no longer possible, it was clear that it was still her wish.
  6. Ms McConnell says that the cooperation and flexibility in relation to the arrangement stopped suddenly in mid-2015, when Mr McConnell’s partner, Ms D, came to live in (omitted).
  7. She says that the father became less willing to attend her home, and that he was also no longer prepared for her to visit his home without notice. She has not visited his home since June 2015.
  8. It is her evidence that she and the children have since that time been excluded from paternal family events and that Mr McConnell was generally less willing to spend time with the children if that time clashed with other obligations or arrangements.
  9. It is the mother’s evidence that both X and Y have been sad and confused at the change in their parents’ relationship and that both had suffered from psychosomatic illnesses such as irregular heartbeat, sleep disturbances and abdominal cramps, which had been diagnosed by their general practitioner as resulting from stress.
  10. At trial she conceded that she had been extremely upset that she had not been able to kiss Y good night on the evening before Y’s last birthday nor wake up with her on her birthday as she was in her father’s care at that time. Ms McConnell had collected Y from school on her birthday and spent that night with her and the level of her distress at not seeing her the previous evening or that morning appeared to be a little extreme.
  11. Her evidence about an incident that took place on 20 August 2016, where the father remained at the McDonald’s restaurant in (omitted) expecting the mother to collect the children from him to attend their maternal uncle’s birthday party, and the mother remained around the corner at the Woolworths store car park waiting for the father to deliver the children to her, revealed a stubbornness on the part of both parties which could only be called recalcitrant.
  12. On that occasion, there had been text messages between the parties about how the children would be delivered to their mother’s care, but there was no explicit agreement about either venue. The mother wished changeover to occur at Woolworths and the father wished it to occur at McDonald’s. Neither was willing to budge until the father eventually attended at the Woolworths car park where the parties had an argument probably in the hearing of the children, if not within their sight.
  13. The mother’s evidence at trial was that the father had been a domineering and controlling partner throughout the 17 years of their marital and post separation relationship, and that she had simply decided not to give in on that occasion.
  14. When it was pointed out to her that that evidence contradicted her affidavit evidence about the relationship between the parties being friendly and cooperative prior to mid-June 2015, Ms McConnell became quite flustered and her evidence became somewhat confused.
  15. Counsel for the father described the incident on 20 August 2016 as “a ridiculous, childish exchange over nothing”. I could not have described it better myself.
  16. Ms McConnell presented at trial as an anxious and at times agitated woman who clearly adores her daughters and wants only the best for them.
  17. However, she also presented, despite her denials, as not having been able to move on from the flexible and cooperative parenting arrangement the parties had prior to June 2015 when Ms D moved to (omitted). She was quite rigid in her thinking and appeared unable to contemplate positions other than her own.
  18. To her great credit, she was able to state that the relationship between Mr McConnell and the two girls was close and loving, although she would only say that the children had told her that their relationship with Ms D was “a relationship, but not a good relationship”. She acknowledged that the children had positive and loving relationships with all their grandparents.
  19. In relation to the time Mr McConnell should spend with the children, Ms McConnell was adamant that they should return to her on the Sunday of the alternate weekends with their father. It was her evidence that the children are somewhat subdued after their weekend with their father and that is not in their best interests to increase that time to three nights. When asked why she would not agree to the children staying overnight with their father on the Sunday night and returned to her after school on the Monday she said:

Because it gives them some stability in that they can come home, they can unpack their things from their dad’s, they can get things organised for the next day, they can do their homework. They can then eat dinner. Just have a good – the normal routine that they do every school night and they can just get into that – you know? And then the next morning they just go – I take them to school. There is not a – you know, at the moment, it’s Mr McConnell and his partner, then his parents and then they get to school and it’s just – whereas it would just be they wake up, I get them ready for school, I take them to school.

  1. Her evidence in relation to changing what has been an overnight during the week since separation to an evening which would conclude at 8:00p.m. was almost identical.
  2. In relation to holiday time the following exchange took place between counsel for the father and Ms McConnell:

Counsel: Tell me – X and Y (sic in transcript) now are nine and seven, and Mr McConnell seeks that they spend half a holiday with him. Good father, good bond, nine and seven, not babies. How can you possibly oppose that straight away?

Ms McConnell: Because X and Y only at the start of the year told me that it was too many days. They didn’t – Y told me that X cried every night. Y said that she missed me and it was a lot of days. They didn’t even know Ms D was Mr McConnell’s partner and then all of a sudden they’re on holidays, just the four of them. They were confused. They didn’t know what was going on. They’ve never been that much time away. And they – they don’t wish to have that much – they love their dad, they want to spend time with their dad, that’s not the argument. It is that they want to spend time with him, but not for great big blocks of time at once.

  1. I note that “the start of the year” was some ten months before that evidence was given, and it appeared that Ms McConnell was unwilling to accept that her children were indeed “not babies” and that they might tolerate and even enjoy more time with their father.
  2. In addition, I find the argument that because children have not spent certain periods of time away from one parent that they should therefore not spend those periods of time with the other parent to be spurious. As I have heard it said in philosophy classes: “you can’t get an ‘ought’ from an ‘is’ ”.
  3. Further, it was Ms McConnell’s evidence that if I were to order that the children spend, say, four nights in a row with their father and their father wished to go away on holiday with them and Ms D for say, ten nights, she, Ms McConnell, would travel to wherever the father and children were and collect the children after the fourth night. I must say I found that evidence somewhat disturbing.
  4. In relation to the injunction she sought against the children’s photographs or videos being posted on social media, it was their mother’s evidence as follows:

X and Y are not old enough to give consent – informed consent for the image to be publicly placed for the people to like and share. You – you know, everyone knows how Facebook works. You like and share, and then complete and utter strangers are seeing all this. They’re not – they’re not Mr McConnell’s family and friends that are seeing these photos, they are shared – I see photos on my newsfeed of people I don’t even know, children I don’t even know. It’s because one of my friends has liked a photo of one of their friends. So this is happening to X and Y. X was very, very embarrassed when Mr McConnell posted a video of her on Facebook without her acknowledgement, and then he reposted that same one just two months ago now from two years ago. That – the actual video that caused her so much embarrassment, he reposted it again.

  1. In response to the question that “Isn’t it, in this modern world, a way that parents communicate with relatives and friends to show what they’re developing (sic) and how they’re doing with their children?”, Ms McConnell stated that if she wanted her relatives and friends to see photographs or videos of her children she would send them to them rather than placing them on public social media.
  2. At the risk of sounding old-fashioned, I agree with Ms McConnell on that issue.
  3. Children are not able to give properly informed consent to the posting of such material, and it is an invasion of their privacy for images of them to be spread across social media without that properly informed consent. I will therefore grant the injunction Ms McConnell seeks in that regard.
  4. In relation to telephone time between the children and the parent they are not living with at the time, Ms McConnell was unshakeable in her belief that the children ought to be able to call her (and indeed she to call them) at any time whilst they are in their father’s care.
  5. She was simply unable to understand that such telephone calls might interfere with the children’s time with their father as she could not contemplate that they might not wish to speak to her sometimes when they were with him.
  6. Ms McConnell’s insight into the children’s needs appears to be limited to her perception of her own needs, concerns and desires. It is simply inappropriate for children to be frequently speaking by telephone to one parent when they are spending time with the other, and I will make an order limiting such telephone time to one call per day.
  7. It is Ms McConnell’s case, set out in her Further Amended Initiating Application filed 21 October 2016, that the children should live with her, that they should spend time with their father on each alternate weekend from Friday to Sunday (or Monday if a public holiday), for an evening on one day per week, for no more than four nights in school holidays, and at Christmas, Easter and on other special occasions.
  8. She otherwise seeks (inter alia) an injunction preventing the parties from posting photographs or videos of the children on social media sites, a parenting responsibility order that is extremely detailed in its terms, unlimited telephone time with either parent at the children’s request, a three hour time limit within which the parties must respond to any text communications, injunctions preventing either party from disciplining the children or drinking more than two standard alcoholic drinks while they are in their care, an order that the children be returned to their mother’s care if the father is unable to care for them for a period of more than three hours, and an order that the father make “a concerted effort to meet the health, physical, emotional, spiritual and medical needs of the children and place their needs as a priority”.
  9. At trial her counsel submitted that the orders I make must be simple, straightforward and easily understandable. I certainly agree with that submission, and I do not intend to make orders that are as detailed in their terms as Ms McConnell seeks.

The father’s evidence

  1. The father swore four affidavits in these proceedings: one on 7 October 2015 which was filed on 8 October 2015; one filed and served on 1 June 2016; one filed and served on 16 August 2016; and one filed and served on 7 November 2016.
  2. I have read and considered the contents of all of those affidavits, as well as the father’s oral evidence at trial.
  3. Mr McConnell agrees that the parties had a cooperative and flexible arrangement in relation to his time with the children after separation in 2009 until about mid-2015.
  4. However, it is his evidence that the circumstances were not quite as idyllic as those described by Ms McConnell.
  5. In his initial affidavit, sworn 7 and filed 8 October 2015, he states, at paragraph 54.2:

[…] I agree that I would have regular time with the children post-separation, however I believe that Ms McConnell was overly embroiled in my time spent periods. The family dinners every second Thursday night eventually ceased, because Ms McConnell would insist upon attending, and they became a venue for us to have disagreements.

  1. Later, at paragraph 54.5, he says:

[…] I constantly would request that Ms McConnell not spend time with me when I was spending time with the children. Once again I do not believe there is anything unusual in such a request, particularly as I have established my own independent life post-separation.

  1. And further, at paragraph 54.9, he states:

I am currently spending time regular time with the children as per the previous arrangement save for each alternate Thursday night dinner which I would like reinstated, and save for extended holiday time. Unfortunately Ms McConnell’s interpretation of “co-parenting”, is not workable in that she wishes to attend for time spent periods, and I would like us to establish some clear and definite boundaries in respect to our respective periods of time spent with the children.

  1. Mr McConnell says that once Ms D moved from Melbourne to the (omitted) to be closer to him in June 2015, it was no longer appropriate for Ms McConnell to attend his family’s functions. It is his evidence that the children did not attend because Ms McConnell refused to allow them to do so if she herself were not invited. He says that as Ms McConnell had not repartnered, her presence at his family events was “beginning to create awkwardness”.
  2. The issue of how families relate with former in-laws after marriage or relationship breakdowns is always fraught, and such difficulties are often exacerbated when one or other party repartners.
  3. There is no perfect way to deal with such difficulties and each family will do so in its own way. I do not criticise Mr McConnell for choosing not to invite Ms McConnell to his family’s events and celebrations once his partner was able to attend.
  4. If Ms McConnell did/does prevent the children from attending such occasions it would be highly regrettable, and would show a lack of child focus that would be somewhat alarming. I note however that Ms McConnell denies preventing the children from attending their father’s family occasions.
  5. In relation to his application for alternate weekend time to extend to the commencement of school on Monday mornings, Mr McConnell states in his affidavits that, as he begins work at 7:00 a.m., Ms D currently gets the children up and ready for school on Wednesday mornings and delivers them to their paternal grandparents, who live a few minutes away and who then deliver the children to school after giving them breakfast.
  6. At trial Mr McConnell gave evidence that his parents and his sister-in-law were prepared to pick the children up from his home and take them straight to school on alternate Monday mornings, which would make those mornings easier for the children. He was clear that the children would never be on their own at his home at any time in that circumstance.
  7. It was his evidence, too, that the children become subdued when it is time to leave his care and go back to their mothers on Sunday afternoons. While it is Ms McConnell’s evidence, or at least her inference, that they are subdued and withdrawn because of some unexplained circumstance that has occurred at their father’s home, Mr McConnell’s interpretation of their demeanour is that they wish to stay longer in his care. Indeed it is his evidence that X has said that she wished she could stay longer with him on several occasions.
  8. It is Mr McConnell’s evidence that he loves his daughters and that they love him, and that evidence is not contradicted anywhere.
  9. He wishes to see the children each alternate weekend from after school on Friday to the commencement of school on Monday (or Tuesday if Monday is a non-school day), and overnight each Wednesday, for half of all school holidays, and for the usual special occasions such as Father’s Day, Christmas, and Easter.
  10. In contrast to Ms McConnell’s evidence, the father said at trial that he was not “a strong-willed person”, that he “(seems) to get walked over a fair bit”, and he agreed with counsel’s suggestion that “you tend to get bossed around?” answering “that, and let things slide a bit”.
  11. In relation to the incident on 20 August 2016, when he was asked why he had just remained at McDonald’s once he knew that the mother was at the Woolworths car park, Mr McConnell stated that he had had legal advice that McDonald’s was the appropriate place because it had CCTV and toilets. He pointed out that it was he who broke the deadlock and attended at the Woolworths car park on that evening.
  12. He acknowledged that he had been annoyed and had sworn at Ms McConnell on that occasion and that that behaviour had been inappropriate. However, in confirmation of Ms McConnell’s evidence, he said that his behaviour on that night was uncharacteristic. It was his evidence that he rarely becomes angry and that when the parties argued he would usually just leave.
  13. In relation to holiday time, Mr McConnell stated that he would like to take the children away for holidays and that he could not do that if he were restricted to three or four days with them. He said he wanted certainty in relation to holiday time so that he could plan.
  14. He denied that the children were anxious and had not coped with being away from their mother for the four days he had with them in the 2015-2016 long summer holidays, and said that if he knew when he would be seeing the children he could organise his leave from work around those times.
  15. It was his evidence that he would like to take the children to “(omitted), all up the (omitted), (omitted), you know, (omitted), stuff like that”.
  16. He was adamant that he did not want Ms McConnell to pick the children up after three or four days of holidays saying “I’ve been there, done that”.
  17. Mr McConnell presented at trial as an easy-going but frustrated father who simply wanted these proceedings to be over and for there to be some certainty about the time that he would spend with his daughters into the future. He clearly loves X and Y very much and wants to be integrally involved in their lives.

The expert evidence

  1. As already stated, Ms J prepared a family report which was released to the parties on 9 February 2016.
  2. Ms J was not available to give evidence in person at trial and unfortunately, as the Court was sitting at the Latrobe Valley Magistrates Court, there were no facilities available for her to give her evidence by telephone in a form that could be amplified and recorded.
  3. In those circumstances, it was not possible for either party to cross-examine her, and I take that fact into account in my considerations.
  4. Ms J’s report describes the mother thus:

11. Ms McConnell presented as an anxious person and emotionally distressed parent. She seemed determined to rekindle the order and flavour of the parenting relationship with Mr McConnell as it existed previous to the current dispute. Ms McConnell made it clear that she did not wish to be in a relationship with Mr McConnell as a partner, but she wanted to retain the friendly and flexible co-parenting relationship she had enjoyed with Mr McConnell for five years after their separation.

[…]

13. Ms McConnell shared that many people had complimented her and Mr McConnell that they had handled the parenting after separation very differently from the normal approach and that had assisted the children to well absorb the impact of the relationship breakdown. She believed that their unique method of parenting the children was successful and as the separated parents they had done everything in their power to remain amicable to protect the children from any negative lifelong effects. The mother stated that she was disappointed and felt distraught that the father wanted to put an end to their focussed and purposeful arrangements.

  1. Ms J describes Ms McConnell as believing that Ms D “did not want Mr McConnell to continue a friendly relationship with her anymore.”
  2. I note that the only incident of any moment that has occurred between Ms McConnell and Ms D was on a day when Ms McConnell visited Mr McConnell’s home to see the children one morning, and despite being told that Ms D would be arriving at about 1:00 p.m., she remained at Mr McConnell’s home, and indeed followed Mr McConnell the children and Ms D to a nearby park. Both women describe the other as having yelled abusively at them and both deny having done so.
  3. Ms J spoke to Ms D by telephone and unsurprisingly Ms D told Ms J that the children were generally friendly with her, but at times presented as distant. She said that she wanted the children to feel comfortable and happy and that she believed that Mr McConnell was “a fit and a fantastic father”.
  4. Ms D is reported to have told Ms J that “she had no plans to take over the mother’s role” with X and Y, but that she believed that Ms McConnell was manipulating the children to believe that they could not survive if their mother was not around.
  5. In his interview with Ms J, Mr McConnell is described as “a person afraid of conflicts” and “a patient and an easy-going person least invested in furthering conflictual communication and hostile interactions with his former wife”. He reported being unhappy about being involved in this litigation, but felt he had to respond when the mother initiated proceedings.
  6. He told Ms J that he had suffered from depression at various periods of his life, and particularly after the separation from Ms McConnell in 2009, but that he had not suffered any symptoms recently.
  7. He was complimentary in relation to Ms McConnell’s role as the children’s mother although he is reported to have said that times she was “over the top and dramatic”. He told Ms J that most of the issues raised by the mother in her affidavits about the “imaginary emotional difficulties experienced by the children” were in fact the problems felt and experienced by Ms McConnell. He told Ms J that he thought that the mother was influencing X and Y to believe that their psychosomatic symptoms were their problem when in fact he thought they were simply reacting to their mother’s overwrought emotions.
  8. Mr McConnell told Ms J that his family stopped inviting Ms McConnell to family gatherings after she had instituted these proceedings as they wish to avoid any conflict in the presence of the children. He also reported that he thought Ms McConnell’s refusal to allow the children to attend paternal family gatherings without her was controlling and unreasonable behaviour.
  9. Mr McConnell did not believe that the children had been adversely affected while he cared for them in the absence of their mother. He said that initially the children were a bit hesitant with Ms D, but that they had settled well after reassurances from him that they would be well cared for and loved.
  10. When then eight-year-old X was interviewed Ms J describes her as having presented as “a tall, soft-spoken and emotional young girl. She impressed as a child a lot older than her age. X had big eyes and throughout the session, she was tearful. She was unable to speak openly and seemed emotionally constricted when seen individually”.
  11. However X was able to tell Ms J that she wanted her parents to be friends, that she wished to continue spending time with her father, and that Ms D was “not mean” to her and Y.
  12. Tellingly, X told Ms J that she liked her mother being there when she was at her father’s place because she did not want to see her mother unhappy and left alone.
  13. In contrast with her older sister, Y presented to Ms J as “a more easy-going and talkative child” who was interested in helping others.
  14. Ms J reports:

48. Y described Ms D as a pretty lady who played with her. Y stated that she wanted her father to come to her mother’s home more often and she then requested ‘please don’t tell dad about it’. Further to that she stated ‘I don’t mind mum not being around when I am with dad. But please don’t tell that to mum’.

  1. Ms J describes the observation sessions of the children’s time with each parent as revealing “a close and affirming relationship with each parent”.
  2. In the evaluation section of her report, Ms J states the following:

56. Ms McConnell opposes father’s objection (sic) about her not being in his home territory and taking over the parenting of the children as she did previously. She perceives that the father is taking her out of the equation and she is replaced by his new partner.’ Ms McConnell seems distressed about father (sic), ‘not factoring everyone’s needs.’ She argues that the parents being in each other’s homes, having dinners together with the children and solely depending on each other to care for their children safeguards the children from experiencing the pain and heartbreak of parental separation and assists them to being emotionally healthy, secure and strong children.

57. Whilst there is some truth in what the mother believes, it is also true that children can cope with the change of circumstances in their lives better, provided that the parents cope well with it. The children also need reframing and redefining the changes in their lives with reasoning and support from important adults in their lives. The father’s sentiment that two is company and three’s a crowd and his desire to avoid the clashing between the two women in his life is explicable. There is a need for everyone in this family to move forward accepting the inevitable changes which is the natural order of life and living.

58. During the report interview discussions, Ms McConnell failed totally to realise or accept the issues from the father’s point of view. She continued to demand family time, family dinners and to have free access to the former partner’s home when the children are with the father. The mother even refused to allow the children to attend functions at the home of the paternal relatives if she was not invited by them to the party. Ms McConnell impressed as ‘stuck in the past’ with repetitive statements about ‘all was going well until’ and ‘things have to go back to the original way of life’.

59. If the father does not agree with her expectations, the mother proposes that the children only spend one overnight each fortnight with the father in the future. Ms McConnell’s approach at times came across a seeking retribution and at other times as being highly anxious about losing control or being wiped out from her children’s lives. She was not amenable to debating the issue in a logical manner.

60. Ms McConnell will continue to be the primary caregiver and the children have a strong bond with her. The children are likely to continue to love, respect and depend on her as before during their time spent in her care. Therefore, it is hard to understand the basis of Ms McConnell’s unfounded fears about the issue. She would probably require long-term explorative and supportive counselling to overcome this seemingly inexplicable, but apparently powerful fear that she experiences at this stage. There appears to be no evidence to believe that the father or his partner have an ulterior motive or purposefully planning (sic) to diminish the role of the mother in this case.

61. Mr McConnell presents as a responsible and loving father and is capable of providing protective care for the children. He has the added support of his parents and later his current partner to cope with any parenting difficulties he may face in the future. The children are familiar and love the company of the paternal grandparents and they indicate that they relate positively with Ms D. There appears to be no real danger to the children if the father provides care for them without the help of the mother during their time spent with him.

62. Although the mother considers that she is indispensable in children’s daily lives (sic) even when they are in the adequate care and company of their father, the children do not necessarily express the same notion or appear to experience the similar emotions as their mother. Nonetheless, they recognise that their mother feels left out and all alone emotionally, due to the inevitable changes in their father’s life. This makes them feel sad for her, guilty for being happy with their father and insecure about their future relationship with their mother and father. This is a very unhealthy development for them.

63. The children have clarified that they love the time they spend with their father, they get along reasonably well with Ms D and they wish that the peace prevails (sic) and the parents remain friends even with the changed circumstances in their lives.

64. The mother’s expectation that father’s time (sic) is cut short drastically for no valid reason is inappropriate and not in the best interests of the children. It is important that they continue to spend significant time with the father similar to what they have done over the years.

  1. I have set the above passage out in full as it mirrors very closely my view of both parents having seen them both under cross-examination the witness box and both parents would do well to pay heed to Ms J’s opinion.
  2. It is Ms J’s recommendation that the alternate weekend time the children spend with their father during school terms should be Friday to Sunday, and that they should also spend one overnight time in each alternate week, and one evening until 7:00 p.m. in the other week per fortnight.
  3. She says that the children should spend half of all school holidays and other important occasions with each parent.
  4. She recommends injunctions against the parties consuming excess alcohol while the children are in their care and against denigrating the other party or discussing parenting arrangements directly with the children. Ms J further recommends that neither parent should attend the other’s home when the children are there without the prior written agreement of the other parent, although both should be at liberty to attend all the usual school, sporting and cultural activities that parents usually attend.
  1. Should there be an injunction preventing the mother from changing the children’s surnames to incorporate the name of her family of origin?
  1. It is the mother’s evidence that she would like to change her surname back to that of her family of origin, which is (omitted).
  2. She says that if she does that and the children’s surnames remain as that of their father alone, it would be confusing for the children as their parents would have different surnames, and they would have only one of those.
  3. Mr McConnell says that she wants to “honour” her family of origin by including the name (omitted) in the children’s surname in hyphenated form so that they would be known as X and Y – McConnell .
  4. It was her evidence at trial that she wished to revert to her previous name rather than keep that of the father because she did not want to be “constantly tied to him and his family in that – in that way. I want to be Ms McConnell and I want my children to be able to honour their mother and their father’s name.”
  5. She expressed concern that if her previous name were not incorporated into the children’s names they could encounter potential problems while travelling or when attending the doctor, saying that she had friends who had encountered just those problems. She said that as the children were only seven and nine years old at that time there would only be school and medical records that would need to change at this stage.
  6. She insisted that life would be “so much easier” if the children had a hyphenated surname incorporating both parents’ names.
  7. However, she was absolutely clear that if the Court did not allow the children’s names to be hyphenated, despite her misgivings, she would retain the name of McConnell to avoid confusion to the children. That is a very child-focussed position.
  8. The father first mentions the mother’s proposal to change the children’s names in his affidavit sworn and filed 16 August 2016, where he says he does not consent to any change, and that if the mother were to formally make such an application he would seek an order restraining her from allowing the children to be named anything other than McConnell.
  9. He does not mention this subject in his affidavit sworn and filed 7 November 2016 but he does include an order restraining the mother from changing the children’s names or using any other name than McConnell as a surname for them in the orders sought in his Amended Outline of Case Document filed 21 November 2016.
  10. Mr McConnell does not appear to have been asked any questions about this issue at trial.
  11. Ms J’s family report is silent on this issue.
  12. Is not unusual at this time in our history for parents to have different names than their children. In some families all the children bear the name of the father or the mother alone, in some the daughters bear the name of the mother and the sons the name of the father. In others the children’s names are hyphenated to include both parents’ names, and in still others the children do not bear the surnames of either parent. That certainly does not exhaust the list of possibilities and there is no one rule that applies to all families.
  13. In this case, it is clearly important to Ms McConnell for her to revert to the name she bore before she was married to Mr McConnell. From her evidence at trial, it was clear that reverting to the name of (omitted) was an important part of her finally separating from him, and her ability to so separate from him may well be of benefit to the children.
  14. Mr McConnell’s objection to the name change appears only to be that the children’s names have always been McConnell and that he can see no reason for changing them.
  15. If the children names are to change to incorporate the name of the mother’s family of origin, it is better that that change occurs sooner rather than later, before issues such as passports and drivers’ licences arise.
  16. In those circumstances, I will allow the mother to change the legal names of the children from McConnell to (omitted)-McConnell, and to assuage any fears the father might have of his name disappearing from his children’s names, I will include in that order an injunction preventing them being known as or called by any other surname than (omitted)-McConnell.

The Law

  1. The orders the Court is asked to make in this matter are parenting orders[1] and the law in relation to parenting orders is found in Part VII of the Family Law Act 1975 (Cth) (“the Act”).
  2. Section 60B sets out the objects and principles underlying Part VII and I will set that section out here for the benefit of the parties:

Section 60B(1) The objects of this Part are to ensure that the best interests of children are met by:

(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and

(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse and neglect or family violence; and

(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and

(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

Section 60B(2) The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):

(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and

(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and

(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and

(d) parents should agree about the future parenting of their children; and

(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

  1. Section 60CA of the Act states that when a Court is deciding whether to make a particular parenting order in relation to a child, it must regard the best interests of the child as the paramount consideration.
  2. Section 60CC(2) and (3) then set out sixteen matters which the Court must take into consideration when deciding what orders might be in a child’s best interests and I shall address each of those matters in turn.

Primary considerations

Section 60CC(2) The primary considerations are:

(a) the benefit to the child of having a meaningful relationship with both of the child’s parents; and

(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).

Section 60CC(2A) In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).

  1. The question of what constitutes a “meaningful relationship” in this context was considered by Brown J in Mazorski v Albright(2008) 37 FLR 518, where Her Honour said at paragraph 26:
      • <li “=””>

    […] a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitative one.

  2. In Tait & Densmore[2007] FamCA 1383, Cronin J considered the distinction made by Kay J in Godfrey & Sanders[2007] FamCA 102 between an optimal relationship and a meaningful relationship, and said, at paragraph 170:
      • <li “=””>

    Kay J distinguished between the optimal relationship and the meaningful relationship. The distinction is clear. An optimal relationship is one which is second to none, unmatched and unequalled. That cannot be what the legislation intended. To be a meaningful relationship, it must be healthy, worthwhile and advantageous to the child. Those adjectives mean that children need their parents to lead by example about self-discipline. Children need to learn to develop the ability to relate with others. They need to learn about the privileges and responsibility which will devolve upon them as parents. Those are fundamental parts of the meaningful relationship.

  3. That is, in the context of this case, if the relationship between the children and each of their parents can be said to be important, significant, valuable, healthy, worthwhile and advantageous to them, and the parents are able to “lead by example” in that relationship, then the benefit to the children in maintaining and developing those relationships must be a primary consideration of the court in considering what is in their best interests.
  4. In this case, it is clear that the relationship between the children and both of their parents is important, significant, valuable, healthy, worthwhile and advantageous to them.
  5. Ms J’s family report makes very clear that both children have a close, and loving and appropriate relationship with both parents.
  6. There is no evidence before the Court to suggest that the children are at any risk in the care of either parent, save that they are reported to be understandably distressed by the conflict between them.

Additional considerations

Section 60CC(3) Additional considerations are:

(a) any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;

  1. The children’s views, as expressed to Ms J, would appear simply to indicate that they want their parents to be friends, which is a very common wish for children whose parents are separated.
  2. The corollary of that view, of course, is that they do not wish for there to be conflict between their mother and their father.
  3. X and Y are both still young children, reliant on the adults in their lives to provide for them and keep them safe. Their views, while pertinent, do not hold the weight of those of teenagers.

(b) the nature of the relationship of the child with:

(i) each of the child’s parents; and

(ii) other persons (including any grandparent or other relative of the child);

  1. As I have stated previously, it is clear from the evidence that X and Y have close, loving and appropriate relationships with both parents and all grandparents, and it is also clear that they are developing an appropriate step-parent relationship with Ms D.

(c) the extent to which each of the child’s parents has taken, or failed to take, the opportunity:

(i) to participate in making decisions about major longterm issues in relation to the child; and

(ii) to spend time with the child; and

(iii) to communicate with the child;

  1. While the mother complains that the father has not always spent time with the children as agreed between the parties, or indeed as ordered by the Court, neither of the parents can really be said to have neglected to take every opportunity to participate in making decisions about the children, or to spend time and communicate with them.
  2. If anything, there is evidence to say that the mother has historically taken the opportunity to spend time with the children in an inappropriate manner while they are in their father’s care, and I note that it is her evidence that she telephones the children to say good night to them every night when they are with their father.

(ca) the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child;

  1. Mr McConnell pays child support for the children pursuant to a Child Support Assessment and it was his evidence at trial that he was up-to-date with those payments and that they came directly from his pay.
  2. He conceded that he had recently ceased to pay for any further expenses of the children and that that had meant that X was no longer learning to (hobby omitted) and that Y was no longer going to (hobby omitted) lessons on Tuesdays although she was playing (hobby omitted) on Saturdays.
  3. It was Mr McConnell’s evidence that he had been informed by the Department of Human Services (Child Support) that he was not obliged to pay any more in child support than the amount of his Assessment, and that he had therefore ceased to do so.
  4. He also conceded that he had ceased to pay for the children’s private health insurance, although it was his evidence that Ms McConnell had agreed to that arrangement.
  5. Given Mr McConnell’s six-figure income, it is regrettable that X and Y have ceased to be covered by his private health insurance policy and that they have had to cease extra-curricular activities because he is no longer willing to pay for them.

(d) the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:

(i) either of his or her parents; or

(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;

  1. There is no suggestion that these children ought to be separated from either parent for any inordinate length of time.
  2. The orders I propose to make will lead to some change in the children’s circumstances, but there is no evidence before me other than that of the mother (who, I think, is rather over-anxious) to say that such a change would have any detrimental effect on them.

(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;

  1. At the time of trial the mother lived in (omitted) and the father had purchased a property at (omitted). The mother had purchased a block of land at (omitted) and stated at trial that she intended to live there eventually.
  2. It was the father’s evidence at trial that his home was about 40 minutes away from the home of the mother and that both parents lived approximately 15 minutes’ drive from the children’s school.
  3. There was no evidence put in any affidavit material or at trial to indicate that there is any practical difficulty or expense in this matter that would substantially affect the children’s right to maintain personal relations and direct contact with both parents on a regular basis.

(f) the capacity of:

(i) each of the child’s parents; and

(ii) any other person (including any grandparent or other relative of the child);

to provide for the needs of the child, including emotional and intellectual needs;

  1. There is no suggestion that these children are not well cared for in the material sense, although the mother complains that the father does not provide appropriately nutritious food for them, an allegation he denies.
  2. The mother also complains that the father does not attend to the children’s homework while they are in his care, especially in relation to their reading requirements, and if that is true, then the father is somewhat lacking in providing for his children’s intellectual needs.
  3. However, there is some evidence that the mother’s anxiety about her role in these children’s lives has been communicated to the children in such a way that they feel protective of her, and even that they have suffered psychosomatic illnesses because of that anxiety.
  4. That indicates a certain lack of capacity to meet the children’s emotional needs, and specifically to separate her own emotional needs from those of the children.
  5. Ms McConnell would benefit from seeking counselling from a qualified professional in order to address that issue, counselling which would not only benefit her but which could greatly benefit both children were it to lead to an amelioration of her anxiety.
  6. Mr McConnell is an uncomplicated man emotionally, despite his history of depression. There is some evidence to show that he has been appropriately responsive to the children’s emotional needs in relation to spending time with him and his new partner, in that he waited until that relationship was on firm footing before introducing them to her and reassured them that he would not neglect them because of that relationship.

(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;

  1. Ms J says that X presents as older than her chronological age and that she appeared somewhat emotionally restricted at interview, while Y showed no such reticence and behaved in an age appropriate manner.
  2. The parents are in their mid-30s and while the mother exhibits some signs of anxiety in relation to her role with the children, both are gainfully employed and do not display any significant immaturity.
  3. There are no lifestyle, cultural or traditional issues in relation to the children which are worthy of comment.

(h) if the child is an Aboriginal child or a Torres Strait Islander child:

(i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and

(ii) the likely impact any proposed parenting order under this Part will have on that right;

  1. There is no evidence before the Court that the children have any Aboriginal heritage.

(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;

  1. Both parents’ attitude to their children is one of care, love and support.
  2. Both also take their responsibilities as parents very seriously, and, in the mother’s case, perhaps with inappropriate involvement in the children’s lives when they are not in her care.
  3. It could be said that the father’s decision to remove funding for his children’s extracurricular activities and their health insurance might indicate a certain lack of financial responsibility for the children, and I have described that decision as regrettable, but he is quite correct in saying he has no legal responsibility to provide for them beyond the amount of his Child Support Assessment.

(j) any family violence involving the child or a member of the child’s family;

  1. In stark contrast to the vast majority of cases decided by way of Final Hearing in this Court, there are no allegations of family violence in this matter, save for the incident between Ms McConnell and Ms D in the park about which I can make no findings, and the incident in the Woolworths car park on 20 August 2016 which I have discussed above.

(k) if a family violence order applies, or has applied, to the child or a member of the child’s family — any relevant inferences that can be drawn from the order, taking into account the following:

(i) the nature of the order;

(ii) the circumstances in which the order was made;

(iii) any evidence admitted in proceedings for the order;

(iv) any findings made by the court in, or in proceedings for, the order;

(v) any other relevant matter;

  1. There is no evidence that there has ever been a family violence order between these parties.

(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;

  1. In the circumstances of this family, it is definitely preferable to make orders that are final, that will give the family certainty, and which will be least likely to lead to any further proceedings coming before this Court.

(m) any other fact or circumstance that the court thinks is relevant.

  1. There are no other facts or circumstances that the Court believes are relevant to consider in coming to its decision.

Decision

  1. Taking into account all of the above evidence and legal considerations, I will make orders for the father to spend time with the children on each alternate weekend from the conclusion of school on Friday to the commencement of school on Monday during school terms, for half of all school term holidays beginning in the third term holidays in 2017, for graduated long summer holiday time leading to half of those holidays from the 2018 – 2019 year, and for special occasions and events.
  2. I will also make injunctive orders in relation to alcohol consumption, denigrating the other party or discussing parenting issues in the children’s presence or hearing, and on the use of any corporal punishment on the children.
  3. I will make an order that the parents have equal shared parental responsibility for the children, but I will not include the minute detail that the mother seeks in that order. Instead I refer the parties to s.65DAC of the Act which requires parents to make a genuine effort to come to agreement about major long-term issues in relation to children.
  4. If there comes a time when they cannot agree about such an issue, then they should seek assistance from a registered Family Dispute Resolution Practitioner.
  5. I will also make an order allowing the mother to change the children’s surnames to reflect both parents’ names.

Conclusion

  1. When the mother was asked at trial whether she would comply with an order of the Court that was contrary to one that she sought, she said:

I find it very hard – if I have to accept it, I have to, but I will find it very hard and I will have to work on a solution to that.

  1. I have not made all the orders the mother was seeking and I suggest to her that that solution may be found in counselling. She will always be X and Y’s primary caregiver and the orders I make will do nothing to diminish her role in their lives.
  2. It is to be hoped that the completion of these proceedings will allow this family to settle into an only slightly different regime to the one they have been used to, so that both young girls can grow up in the certain knowledge that both their parents love them dearly and are able to care for them appropriately.

I certify that the preceding one hundred and seventy five (175) paragraphs are a true copy of the reasons for judgment of Judge Small 

Date: 22 June 2017


[1] See s.64B(2) of the Act.

NOTE:  This case has been published by the Court under a PSEUDONYM, rather than using the real names of the parties.  Section 121 of the Family Law Act 1975 makes it an offence, except in very limited circumstances, to publish or distribute a report of a case or part of a case, including information contained in a Judgment, which identifies parties, related or associated persons, witnesses or others involved in the case.  A breach of the section is a criminal offence.  The section also sets out certain limited defences to criminal liability. An example is where the Court has expressly authorised the publication.  

A printable version can be accessed from Austlii without pictures or advertisements here, which should be used if you wish to provide the case to the Court in your matter.

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